2) If they can make the argument to a court that having to pay license fees for invalid patents is somehow unjust enrichment(especiallyif the license fees are still being paid).http://en.wikipedia.org/wiki/Unjust_enrichment [wikipedia.org]

No. It is the same patent. If it is invalidated, it is because it is an invalid patent. It is not a patent that rotted, wore out or turned sour. It is the very same as it always was. An invalidation is a correction to the fact that the patent was granted at all. Off course, the patent office should be held responsible for the damages.

Inquiring minds want to know. If the use of said patents was the sole factor in the suit, then I would say, the company is entitled to reimbursement. If there was anything else going on at the time, or if for example it involved two patents and only one patent was invalidated, then I think the case would have to be revisited. IANAPL, this is just wild speculation.

What I want to know, however, is how those patents made it through said suits intact, only to be declared invalid by the USPTO at a later date -- wouldn't, in the course of the suits, the patents get thoroughly vetted by the USPTO, under scrutiny of the court? Or am I applying too much logic and common sense to the patent system?

wouldn't, in the course of the suits, the patents get thoroughly vetted by the USPTO, under scrutiny of the court

Nope. The patent stands until the USPTO invalidates it. They're motivated to churn through patents and get paid for them... the USPTO isn't necessarily interested in making sure the patents are any good. And, the legal standard [nature.com] to overturn a patent is quite high. (Sorry, it's only a partial article)

Or am I applying too much logic and common sense to the patent system?

Nope. The patent stands until the USPTO invalidates it. They're motivated to churn through patents and get paid for them... the USPTO isn't necessarily interested in making sure the patents are any good.

Indeed. At more than $1000 filing fee per patent, the USPTO is now a revenue center for the Federal Government. We lack the political will to raise taxes or to lower handouts, so we resort to sneaky, lossy, eventually ruinous methods of revenue. Like patent applications.

wouldn't, in the course of the suits, the patents get thoroughly vetted by the USPTO, under scrutiny of the court

Nope. The patent stands until the USPTO invalidates it.

You're both incorrect.

The USPTO is not directly involved in litigation, so the patent is only vetted by the court as part of the lawsuit. The USPTO can also reexamine a previously issued patent, but this is generally independent of a specific lawsuit.

A federal court can invalidate a patent on its own as part of a lawsuit. The USPTO is not directly involved with this decision.

The court presumes that the patent is valid, so unless there is clear and convincing evidence then the patent stands.

The courts presume that all patents granted are valid and that it is extremely unlikely that an invalid patent is before them. This is of course most likely wrong, and the cause of much of the nonsense in patent cases.

One could probably move to revisit the case, but I am not familiar with the rules of court in federal courts.

Don't forget cases in which a company (e.g. NVIDIA) settled with Rambus.

Previously, the International Trade Commission (ITC) ruled that Nvidia, HP and other firms were infringing two Barth I patents owned by Rambus. This led to Nvidia settling with Rambus.

The courts ruled that there was an infringement, but the deal to use the technology after that wasn't court mediated. That could mean a reversal in the patent status won't automatically even give valid justification for a refund - it'll depend on the sett

The courts ruled that there was an infringement, but the deal to use the technology after that wasn't court mediated. That could mean a reversal in the patent status won't automatically even give valid justification for a refund - it'll depend on the settlement terms. If it's written such that one party is paying for technical expertise, design parameters, surcharge per unit installed, or etc... it could be pretty murky.

Hmm, a good point; I've never liked the concept of settling from an idealistic point of view, but this would certainly be an instance that actually backs that up.

For example, if someone promised to give me a penny for every breath they took, even if I don't own their air, I should still be able to collect on that (of course it's again murky if I had previously convinced them I owned the air, or I would poison it if they didn't pay,...). Probably the most common version of this sort of agreement that I run across is when some kid comes up to me and asks for $0.25 to go toward cancer research fundraiser personnel for every lap he walks on the high school track.

I am not a lawyer, but one characteristic of a valid contract is consideration [wikipedia.org]. Each party to a contract must incur a legal detriment of some kind -- that is, each kind needs to give up something of value, and each party needs to receive something of value. I don't know that either example you give constitutes a valid contract because neither has consideration. Also, the first agreement was probably made by someone not of sound mind, and the second was made by a minor.

If it later turns out the kid didn't actually give the money to the charity or that the "charity" was actually "buy a kid a new xbox", he (or his parents) are on the hook to either refund the money or make good on the donation to the designated charity.

The courts, by default, assume that the USPTO did their job correctly and **all** issued patents are valid.Someone who infringes on an obviously invalid patent needs to pay the cost of delaying their trial while they, on the side, try to get it invalidated by the USPTO. Judges who "get it" will regularly stay the trial pending the results of the invalidation examination, which helps a little, but even that isn't guaranteed.

Inquiring minds want to know. If the use of said patents was the sole factor in the suit, then I would say, the company is entitled to reimbursement. If there was anything else going on at the time, or if for example it involved two patents and only one patent was invalidated, then I think the case would have to be revisited. IANAPL, this is just wild speculation.

License agreements are contracts, so you'd have to look to the specific terms in the contract. Most will include provisions that terminate the obligation of royalty payments if the patents are invalidated, but very few require repayment of past license fees - because the patent owner would never agree to such provisions.

What I want to know, however, is how those patents made it through said suits intact, only to be declared invalid by the USPTO at a later date -- wouldn't, in the course of the suits, the patents get thoroughly vetted by the USPTO, under scrutiny of the court? Or am I applying too much logic and common sense to the patent system?

Most of this stuff doesn't have bright line tests, but instead uses questions of fact that could get decided either way - and that's why these things go to court. If they were always certai

If a company is sued by a patent holder and forced to pay licensing fees, and that patent is later invalidated, is that company entitled to reimbursement?

It depends. If they reach a settlement, then the terms of the settlement determine what happens if the patents are found invalid in the future. Since the terms of such settlements are often confidential, we'll never know.

For court-ordered settlements, most likely not, because if the patents were contested, the court will wait to see if the USPTO revokes th

A licensse can ask for a lower price in return for a provision that the ultimate validity of the patent is irrelevant. Or the opposite. Obviously, the implicit threat is a drawn out and uncertain legal battle where the would be licenser may end up with nothing buy legal fees.

It appears that it deals with 2 out of 3 patents, collectively known as Barth I.

If you are sentenced to death by hanging, quartering and finally beheading, and another judge orders you cannot be hanged or quartered, you may win, but you will still lose your head (perhaps we were better off with car analogies...). In other words, the third patent still stands.

Correct, I worked for a company that RAMBUS sued after it pulled it collaborative patents derived from the JEDEC membership and standards. Rambus then proceeded to sure everyone that made any kind of RAM for a patent they claimed to own, but was actually created using joint resources of the JEDEC committee. RAMBUS are the original patent trolls of the modern age.

If someone has a smoking gun that proves that someone making decisions for RAMBUS knew that they were making specious claims or whatever grounds the patents were invalidated upon then the injured parties probably have a case for civil court. But even though everyone knows that's what happened, the courts are not likely to even hear the case without some proof.

If a trial court has rendered a verdict, yet such has not become final (because of post-trial motions), the losing side in a patent case would file a motion for a reconsideration. If the trail verdict has become final (an entry of judgment), the next step would be to file an appeal. In patent cases, this is done to the Federal Appeals Court of the geographical area (the Federal District Court) which rendered the verdict (this is per Federal Statute). The statute fo

They never made RAM, they came up with the specification for RDRAM. And they then got their lunch eaten when DDR became available for the Pentium 4 and offered almost as good performance for much cheaper and without the eccentricities and then went sue happy over it.

Though their new XDR2 RAM looks promising. It's supposed to be used in AMD's upcoming 7900-series videocards.

Actually, DDR was never as fast as RDRAM, but it had better latencies. RDRAM was technically a better solution at the time, and becomes even more so as we scale up in processor frequency and number of cores, but the royalties (and memory manufacturers who colluded to ruin RDRAM through price fixing) killed it.

My first thought upon reading this was "They should make Rambus repay the companies that gave them licensing fees based on these." My second was "with treble damages to discourage this shit." My third was "On the other hand, they were just (underhandedly) playing the system as it exists so maybe that's a little unfair". Then I realized the solution. Make the USPTO repay the license fees. That would improve the quality of their patent review really really fast.

In my dreams. It would more likely mean no patent ever got overturned.

No that would slow down their patent review even more. If we just invalidated all software and method patents their work load would be reduced and would be able to do a better job reviewing and hearing challenges to existing patents in a more timely manner.

It could be argued the USPTO is negligent, and thus owes some relief to those left out of pocket, since:

a) there were some $ losses due to matters arising from the incorrect award of the patentb) they knew (or should have known) incorrect award of a patent would result in such losses.c) that incorrect award was of USPTO's doingd) that a $ value can be put on the losses.

It simply isnt consistent with the idea of natural justice that:a) BigCorp with $$$ applies for patentb) US

Why would the USPTO issue any patents under his system, more like. A much better situation!

Make the USPTO pay for any mistakes they make in issuing that later costs either the receiving company money (in litigation costs they incur thinking they have a valid patent) or any company involved in litigation defence or licensing.

Everyone victimized by these ridiculous patents should get into a class-action lawsuit the guilty party in all of this -- the patent office. Adding punitive damages for the results of its fraudulence and incompetence, the lawsuit should run into the hundreds of quadrillions of dollars. Perhaps this would bring some needed sensibility to the process, like peer review or simply throwing it all out the airlock.